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c6e0dc5fc83a52ee9284ec7ece75729f
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TO:
Eliot Cu.tle..tr. 1 Le.a K1tulLtz and A. Ste.ve.n Clay,
White. Hou-6 e. Tct.~k FolLc.e. on I nd,i,an CLLam.6 -ln ,\{ctJ.JH,
FROM:
Pa1.> .6 amaq uo ddy I Pe.no b1.:, c.o t Ne.§ ot,£a.tio ~i Co mmLt.te. e.
SUBJECT:
Se..t.tle.me.n.t Pac.kage.
VATE:
No v e.m b e..tr. 1 1, 191 7
I
I
.
Al.> it!.> c.ont.tr.ibution to the. 1.>e.t.tle.me.n.t 06 .the. Pa1.>1.>amaquoddy and
Pe.nob1.>c.ot land c.laim~ and ln Jc.e.tu.tr.n 60.tr. .tr.e.linqui1.>hme.nt 06 the.
c.laim.6 06 the. 1.>ald Nation!.> to p.tr.ivate.ly he.ld land, the. 6e.de..tr.al
gove.tr.nment .ahdll:
1.
Ac.qtti.tr.e. and talze. in t1tu1.>t 60.tr. the. be.ne.6it o-6 the. Pa-61.>amaquoddy
and Pe.nob1.>c.ot Nation!.>, 500,000 ac..tr.e..6 06 land in the. S,tate. 06 Maine..
The.. 1.>aid land!.> a.tr.e. to be. ac.qu.i...tr.e.d in ac.c.o.tr.da.nc.e. with a .6e.le.c.tion.
p.tr.oc.e..6.6 e.1.>tabli.ahe.d with the. eon.ae.nt 06 the. 1.>a.id Nation.a.
1
2.
Pay the. Nation!.>, $50,000,000 in c.a1.>h to be. utilized by the.m
60.tr. the.ill. be.ne.6it. Suc.h 6un~ 1.>hall be. admlni1.>te..tr.e.d by the.
individual Nation!.>, but no pa4t 06 the. p.tr.lnc.ipal 1.>hall be. dl1.>t.tr.lbute.d on a pe..tr. c.apita ba1.>i1.>.·
3.
P.tr.ov-lde. $6,000,000 pe..tr. ye.a.fl. in 1.>e..tr.vic.e.1.> 6.tr.om the. Ve.pa.tr.t.me.nt
06 the. Tnte..tr.io.tr. 60.tr. the. ne.x,t te.n (10) ye.a.tr.I.> and p.tr.ovide. a p.tr.opo.tr.tional 1.>ha.tr.e. 06 1.>uc.h de.pa.tr.tme.ntal 1.>e..tr.vic.e.1.> the..tr.e.a6te..tr. wi.thout
te..tr.mination, p.tr.ovide.d, howe.ve.Jc., that in no . e.ve..nt 1.>hall the. amount
06 .auc.h 1.>e..tr.vic.e.1.> be. le.1.>1.> than $6,000,000 pe..tr. ye..~.tr..
A p.tr.opo.tr.tional annual 1.>ha.tr.e. 06 de.pa.tr.tme.ntal 1.>e.tr.vic.e.1.> 1.>hall be.
de.6ine.d a1.> .that amount whic.h Jc.e.1.>ult1.> 6.tr.om dividing the. a~nual
Ve.pa.tr.tme.nt 06 the. Tnte..tr.lo.tr. Indian app.tr.op.tr.iation1.>, e.xc.luding 6und1.>
app.tr.op.tr.iate.d 60.tr. the. be.ne.6it 06 the. Pa1.>1.>amaquoddy and Pe.nob1.>c.o.t
Indian!.> by the. total Indian 1.>e.tr.vic.e. popula.tlon 06 the. Ve..pa.tr.tme.nt,
e.xc.ludlng Pa1.>1.>amaquoddy and Pe.nob£c.ot me.mbe..tr.1.> 06 the. 1.>e..tr.vlc.e.
population and then multiplying that amaun.t by the. total-1.>e..tr.vlc.e.
population 06 the. Pa1.>1.>amaquoddy and fe..nob1.>c.ot Na.tlon1.>.
4.
P.tr.ovide. 1.>e.Jtvic.e.1.> 6.tr.om the. Indian He.~lth Se..tr.vic.e. 06 the. Ve.pa.tr.tme.nt
06 Health, Educ.ation and We..lia.tr.e.. at a .tr.ate.. de.te.Jtmine.d by the. Nation!.>
and the. Indian He.al.th Se.Jc.vice in c.onjunc.tion with the. 066ic.e. oo Manage.me n.t J. ''Ld Budg e.t.
In no c.a1.>e., 1.>hall the. amount be. le.1.>1.> than $2,000,000 pe..tr. ye.a.tr..
P.tr.ovi1.>ion 06 1.>e..tr.vic.e.1.> un.de..tr. thi1.> pa.tr.ag.tr.aph and pa.tr.ag.tr.aph #3 1.>hall
not p.tr.e.c.lude. the. Nation!.> 6.tr.om 1.>e.e.~ing additional alloc.ation1.>, 6.tr.om
the. a6o.tr.e. me.ntione.d Ve.pa.tr.tme.nt1.>, 60.tr. 1.>pe.c.ial p.tr.oje.c.t1.> no.tr. the.. be.ne.oit
and u.1.>e. 06 the. Pa1.>1.>amaquoddy and Pe.n.ob1.>c.ot Indian!.>.
�5. 1n-6ulte. that all la.nd-6 ac.qul1te.d pu1t-6uant .to paltaglta.ph #1
and all land-6 plte-6ently held by ~he Natlon-6 a-6 1te6e1tvatlon-6 be
c.on-6lde.1ted ~ndlan Count1ty, exempt. 61tom -6.tat~ taxation and Jtegulatlon, lnc.ludlng hunting, 6l-6h..i..ng 'and tJtapplng fl.e.gula:tlon-6, e.xc.e.pt
c.lvi~and c.fl.iminal Ja1tl-6dic.tlon..
Wlth 1tega1td to c.lvll and c.Jtiminal ju1tl-6dlc.tion, the. 6e.de.1tal gove.Jtnme.nt .6hall p1tovide oo!r. c.lvll a.nd c.1titnln(t.f. juJr.L!)cfJ..c.tJ.on b11 the.
State. o 6 Maine. du1tlng coi inlt-tal -6.tu. dy .pelt.lad, not .to e.xc..e.e.d two
ye.afl.-6, du1tlng whlc.h tlme. the. Aald Nation-6 -6hall de.te.nmlne. whe.the.n
the.y wl.oh to have. the.lit land.6 c.on.6lde.fl.e.d Indian Countlty 601t
pull.po-6 e.1.> a 6 c.lvil and c.fl.lmlna.l j uJti-6 dic.tlo n. In, at any tlm e.
du1tlng the. 1.>aid.two yealt pe.ll.iod the. Natlon-6 -6hall de.c.lde. to have.
the.ill. land-6 c.on-6ide.~e.d Indian CountJty 6ofl. pu1tpo-6e.-6 06 c.lvll and
c.Jtimlnal jufl.i-6dic.tlon, then the. ju1tl-6dic.tion 06 the. State. 06
Maine. 1.>hall c.e.a.-6e. 601t the-6e. pultpo-6e..6.
6.
Ac.qul1te. e.a-6e.me.nt-6 601t pu1tpo-6e.-6 06 hunting, 6i-6hlng and tltapping
601t non-c.omme.Jtc.lal pu!tpo-6 u 67l..om the. la1tg e. i.andholde.Jt-6 within the.
null potential c.lalm all.ea, a.-6 de.6ine.d by the. Ve.pa1ttment oo Ju-6tlc.e.,
on all land-6 he.id by J.>uc.h c.ompanie.-6 in the. State. 06 Maine.. P1tovlde.
in all le.gl-6latlon e.66e.c.tuatlng a 1.>ettle.me.nt 06 the. c.lalm-6 that the.
1tlght 06 the. Nation-6 to hunt, 6i-6h and tltap 601t non-c.omme.Jtc.ia.l
pultpo-6e.-6 wlthln the State. 06 Maine. aJte. not e.xtinqul-6he.d, and
obtaln, thJtough ne.gotlatlon. o4 litigatlon the. Natlon-6 !tight to
e.xe.1tc.i-6e. 1.>uc.h Jtight-6 th1toughout the. 6ull potential c.laim all.ea
without inte.1t6e.1tanc.e. 61tom the. State. 06 Maine..
~ 7. ·
Ac.quiJte. a de.e.ded Jtlght to obta.ln bJtawn and yellow a-6h · 61tom
the. land-6 06 the. Lange. lan.dholde.Jt-6, a-6 me.ntione.d in pa1tag1taph 7,
on the. land-6 06 J.>uc.h landholdelt-6 within .the. State. 06 Malne..
8. Obtain an. agtr.e.e.me.nt 61tom the Ba.ngolt Hydno El.e.c.tnlc. Company
.to c.e.a-6e. 6loodin.g 06 the. Pe.nob-6c.ot Re.J.>e.Jtvatlon..
9.
P1toc.e.e.d on be.ha.lo 06 the. Na..tlon-6 agaln-6t the State. 06 Malne.
.to Jte.c.ove.Jt plto-6-6 e.J.dlon o 6 atl la.nd-6 ·a.n.d wate.Jt-6 hild by .the. State.
06 M~ine. within the. 6ull potential c.laim aJte.a, toge.the.ft with
mone.taJty tJte.-6Jpa-6-6 damage.-6 604 .the. Wltong6ul withholding a6 J.>uc.h
land-6 and wate.Jt-6.
P1tovide. authotr.ity, a.,~ paltt. 06 ,the. land -6e.le.c.,tlon pltogltam
.to be. e.J.>ta.blil.)he.d pult-6uant to pa1tag1taph #7 to ac.quiJte. land-6
wi.thln Indian Townjhip, P1tlnc.eton, Malne. whlc.h aJte. plte.J.>e.ntly held
by non-Indian!.) ln the event -6~~h non-1ndl~n l~ndholdelt~ alte.
unwilling to volunta1tily -6e.ll thellt lnte.Jte.Jt ln Juc.h land-6,
pltovide.d howe.ve.Jt, that the. -6aid non-Indian landholde.Jt-6 may be.
pe.1tmi.t.te.d to Jte.tain a ll6e. e.-6ta.te. ln any -6uc.h p4ope.~ty .to be.
ac.qui~e.d pult-6uant to J.>uc.h autho1tity.
10.
P1tovide. the PaJJamaquoddy and Pe.nob-6c.ot Indian-6 06 Maine wl.th
the. Jame. e.xe.mptlon 61tom .the Ma1tine. Mammal P~o.te.etlon. Ac..t a-6 i-6
c.ull.Jte.n.tly a6601tde.d the. IndiaM 06 the. No1tthwel.)t Coal.).t.
11.
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Conc.lude. t.hi-0 -0 e.t.t.le.me.nt pac.h.ag e., in tlte. noJtm p 6 a t.Jte.aty
be..t.we.e.n the. Pa-0.6amaquaddy and ?e.nob1.>c..at. Na:tion-0 .and the. oe.de.Jtal gove.Jtnme.nt..
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
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National Congress of American Indians Records
Description
An account of the resource
Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
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NMAI027
Title
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Memo from Passamaquoddy and Penobscot Negotiation Committee to the White House Task Force on Indian Claims in Maine, describing the terms which the Passamaquoddy and Penobscot Negotiation Committee agrees to in exchange for relinquishment of their land claims. (11/11/1977)
Date
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11/11/1977
Source
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National Congress of American Indians Records
National Congress of American Indians records, Box 531, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indians - Land Claims - General, I] [1 of 3]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
This document refers to a jurisdictional arrangement where tribal lands are "considered Indian Country, exempt from state taxation and regulation, including hunting, fishing, and trapping regulations, except civil and criminal jurisdiction[, which will belong to] . . . the State of Maine during an initial study period, not to exceed two years . . . ." It also requests federal legislation that specifies that "the right of the Nations to hunt, fish and trap . . . are not extinguished."
Type
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Text
Documents
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
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Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
A. Stephens Clay
Eliot Cutler
Extinguishment of Claims
Hunting and Fishing
Jurisdiction
Leo Krulitz
White House Task Force
White House Work Group
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PDF Text
Text
05TJI coNGRE:--;s
!2D Si-:SSlON
H• R•
12834
/.i/
•
IN 1'IIB IIOlJSB OF RBPRBRBN'fA'rIVES
)L\y
~a, rni8
~l r. Com::'11 ( for· hi111:-;t·l i' :111d ~[ I'. E:-i11:1:Y) iti1 rod111 ·1·tl t l1P f'olln\\"ing !Jill; wliil'h
" ·as r<ifrrred jointly fo f lil' Co111111it(i'c':-- c111 ltitPrior :ind Tn~11lar Affairs nnd
t lie .Trnliciary
A BILL
To settle Indian lnnd <·lnims "·ithin tlie Rtat<' of 1fai11c, :md for
other purposes.
1
Be ·it enacted by the Senate nnd House of Representa-
2
t· ves of the United States of Am<>rica in Cong1·ess assembled,
i
3 That this Art may hr citt d n.s 1,lw ")fnins ItHlinn Clnim~
1
4 Settlemen·t Act".
5
CONORESSTOX.AL FIND1NC:8 AXn DEC'LAHNrTON OP POT,ICY
iSrmTroN 1. CongrPs~ fitHl~ mHl c (·lnrPs ·that.h
G
1
7
( l) the l\u;~anrnqnodcly nn<l Pcuoh~<'ot Indian
!J
vast m·<'as of lmul i1t )lnim' to wlii<'h tl1< y c·lnim ahorig-i1
tit.lt\ n~ wpll n~ cl:irn:1g~<'s l'ron1, :11110111 othl'r~, I lin
!.'
]O
11;11
11
present ownN~ of _1ht'~n hnul~.
I
111t
tlin gro1m,l~ thnt the
�1
~!r.'fff''~
I
2
1
original trnnsfors of the~c laml8 hy the tribes to the
2
StntP~ of JI n~sn('hll~Ptts arnl )In inc WPre made in viola-
3
tiou of the rrrade nnd I11tercours(' Act of 1790, oi· subsc-
4
q1wnt ver~ion thereof;
5
6
7
(:?) other cluims to land in :Maine mny be raised
in the fntnrP by other lHdinn t-rihes or nations;
( 3)
there are many unique and complicated ques-
8
tions of law nnd fa.ct thnt would he rai8Pd in the litigation
o
of ra('h of the claimR, which· would t·nke many years to
10
resolve;
11
(4) 'the mere pemlency of these elnims, irrespective
12
of the ultimate outcome of any litigation testing their
13
Yalidity, mny result in irre111uahle <lamnge and suh-
l t1
stantial adver8e consequence~ to the State of Maine nnd
15
its citizens, who 'haYe acted in good faith in acquiring
16
their present titles to the lands involved;
17
(5) the United Stnks ha8 at nll times since the
ti
]8
founding of the Nat ion until 1H75 disclaimed any and
19
all tmst or fidncinry re~pou~ihility for t~e Indian tribe~
20
in Maine and ha~ 1wnnittctl and enroamged responsi-
21
hility to re~ide in the Comm0l1wealth of Masssdmsetts
22
which, upon the sPparation of }iai1m from lfnssacbu-
23
~ctts in lR.20, trnn~fotTed sud1 re~ponRibility to the
24
State of }faine;
25
( 6) since 1820 tl1e Stnte oi ~foine, ha.~ nssumecl
•
�;J
1
und fulfilled llllllt<'rous rrspou~iuil it ie~, in<:hlllin~ trust
2
rcspousibiliti<·~, to tho ludiau tribes iu the Htute of
3
:llniuc with th<' foll kuowlt·d~t\ tmd npprovn] of tho
4
Federal Government;
5
(7) nt nll times pnor to 1975 the United States
1wu11wr cou~i~tl Ht with tlw nnderstmuliug
6
acted in
7
thnt the Trndt~ nwl Iuterconrse A<'t wns not applicublc
8
to Indiau trilH's in )[aim• nnd :\fassadm~ett~, or nl-
9
ternatively, t·om;istent with the premi~c that, if the
10
Trade and Iutercoursc . . \.rt were applic1.1ble, the trnns-
11
fers of land by Indian tribes in the land area now com-
12
prising the 8ti1tc of :Mninc had rcct·ived the express or
13
implicit a.pproval of Congre~s;
14
a,
( 8) hn~ed
1
011
tho ad ious autl jlla<'tions of the
15
United State~, the State:; of }Iaiue and )lns~achusett:s,
16
and their eitizc,ns han~ justifiably relied oH the lwlief
17
that the 'l1 rnde awl Iukrconn;e Act wns iua1,plicnhle
.18
-to Iudian trihcs in saitl State~, or if the . .\et were ap-
19
plicahlc, the tmusfcrs of laud J,y lmfom trihcs in the
20
luud area. now compri~ing the State of )luiuc had rn-
21
(·eived the a ppro,·a l of Congn'~~;
ti
22
23
tho is~ne has now ht•t•u rai~cd whether the 'rrade aud
Intercourse ;\('(, <loes n pply to laud trau~fen.; rnadt• by
Indian tribP~ in the In wl a n·a How
t·11111 prising
the
�4
1
Stale of .:\[nine, n1ttl the l' uitt\tl 8tntP~ hns state<l that,
2
despite its failure to recognize any trust or fiduciary
3
responsibilities to these tribes for one hundred and eighty-
4
eight yean;, it is prepared to· · Lring suit against the
5
Stntc of Maine and innocent present landowners in the
6
State 8reking the return of vnst land areas to the Indian
7
tribes and recovery of ~ubstantial money damages on
8
their behalf;
9
( 10) the current pro bl ems caused by t.he pcndency
10
of the daims arc the direct result of the Unit~d States'
11
failure to rctognizc that for the past ouc hundred eighty-
12
eight years it may have had a trust or fiduciary respon-
13
sibility to the Indian tribes in the State of
14.
Jiassaclmsetts under tho Trade and Intercourse Act;
:unine
and
15
( 11) Judge'\Yillia.m Il. Gunter, the Special Repre-
16
sentative of rresideut Carter, who was assigned hy the
17
President i.t1 1977 to study tho case and rccommcutl
ti
18
]federal actiou to re~olvc the problem, has properly con-
19
cluded that the U nit.ed Stutes is prima,rily liable for the
20
creation of these problems; and
21
( 12) in light of tlw foregoing, it would Le unfair
all(} i1w<pLi ta Mc for i1mocPut parties in the State of
)Iainc to he subject to the risks aud hardships that
would be cnnsed hy litigation .~f the claim~, and jt1stice
and sound public policy requi1:c that the Unite<l States
�5
1
accept respo11sibilily nlHl liability to any Indian triLe iu
2
the State of ~Iaine that may have transferred its lau<l in
3
violation of the Trn<lc and Tutcrcourse Act.
4
ltATIFIC.ATION OP ALL PHIOR IJAND AND \V.\TER CON\'BY-
5
ANCE AND EXTINflUISTil\fENT (W AllOR.JGINAL TITU~
6
SEC. :!. (:l) .. \ ll dni1u~, indrnliug lmt not limitc<l. to,
7
claims for possession, occupancy, or trespass against any
s
State or subdivi~ion thereof, or any other person or entity
9
by any Indian involving any transfer of lands or waters
10 located within the State of l\Iaine from, by, or on behalf of
11 any Indian, including but not limited to, transfers pursuant
12 to State statutes, is hereby extinguished and the exclusive
13 remedy for any claimant ~hall ho a claim a.gn.inst the Uuitcd
14 States under scetion 3 of this Act. This sc('tion shall not be
15 deemed to constitute a finding by Congress that any provi-
16 sion of the Constitution or auy laws of the U11itcd States
17
were applicable to any such transfer.
,l
18
(b) ~L1o the extent thnt any transfer of lands or waters
19
dl'scribed in snhscution (a) mny involve lnntls or waters to
~O
which any Indian had alJoriginal title, subsection (a) shall
21
Le regarded as an cxtinguighment of such ahoriginal title
22 ns of the date of said transfer.
23
( c) . ..\.s tt.~etl in this . . \et, Lhe phmse ''lands or wntrrs"
24 g}iall include any interest in or rigl1t involving lands or
25 waters; the term .: transfpr'' :-ihall iududc, hut not Le lim~
•
�6
1 ited to, auy sale, gruut, I0tse, allotnumt, partition, couvey2
ance, release, t1uitclaim, c~:,ion, adverse ,pOtisession, or any
3
event or events ti.tut rcsttlt<.~l in .a du111gc in possession or
4: control of lands or wutcrs or a reliuquit:1h1oemt of rights in
5
hmds or wa.ft'rs, iuclu<ling,, without Hmitnt;ion, hmrlJng nu<l
6
fishing right~; and the terms "Indhm" or "Indians" shall
7 include auy Iudinu, Iudiau tribe, uatio11, ha11xl, or other
s
9
10
ideutifiable group of Indian~.
RECOVERY .A.G...UNS'f
nm u ~ITED
STATES
SEC. 3. (a) Any Indian whose clnim to occupancy,
11 possession, or trespass wns extinguished hy section 2 of this
•
12 Act -shall have the rig·ht ·t-0 maiumin an action a.g.aiust the
13 United Stutes for damage~ on the grounds that the transfers,
14: when made, were in violation of the l,1,ws o{ the United
15 States. The Court of 0lairm shall have exclusive jurisdiction
16 to hea- any such claim under the provisions of section. 1505
r
17 of title 28, U11itecl States Code.
18
"
( h) The amount of any judgment awarded under this
19 section shall equal the value of the claimant's interest in the
20
lund or water at the dnte of transfe1·, less any payments
21
made in consideration of the t.runsfer lJlus reasonable annual
22 simple interest from the date of th(~ tran~fer to the dnte of
23 judgment. Auy judgment in favor of a claimant shall iu-
,r._ ,.
1·
.
,..
24: elude rengouahlc expenses, including a.ttomey and expeit
25
witness fee~.
•
.
�7
· 1
( c) Every rla im for which jurisdiction iK hereby es-
2 tablishecl in the ( \mrt of Clainu; shall he barred unless a
3 claim is filed within six years from the rffectiYe date of
4
this Act.
5
6
JT
rRISDICTIOY OF THE STATE
SEC.
4." Any lands currently held or hereafter acquired
7
by any Indian in the Stnte of lfaiue, or any persons resid-
8
ing or found thereon, :-;hall he suhjt1ct to all laws of the
9
State of Maine. ·
•
•'
�
Dublin Core
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Title
A name given to the resource
National Congress of American Indians Records
Description
An account of the resource
Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
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Identifier
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NMAI021
Title
A name given to the resource
Maine Indian Claims Settlement Bill H.R. 12834 (House of Representatives) (05/23/1978)
Date
A point or period of time associated with an event in the lifecycle of the resource
5/23/1978
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 531, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Land Claims - General, IV]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Section 2 of this draft deals with Extinguishment of Claims (what is now found in 25 U.S.C. 1723). Section 2 extinguishes claims involving transfers of lands or waters (or rights to their use). Section 3 provides a remedy against the U.S. for damages related to the extinguished claims. Section 2 does not "constitute a finding that any [federal laws] were applicable to any such transfer." Section 4 of this draft deals with Application of State Law (an early version of what we now know as 25 U.S.C. 1725). What we know today as 25 U.S.C. 1735(b) is not yet included.
Type
The nature or genre of the resource
Text
Documents
Format
The file format, physical medium, or dimensions of the resource
PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
1723
1725(h)
Application of State Law
Draft Bill
Extinguishment of Claims
Hunting and Fishing
Jurisdiction
-
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63f64da786edc39f8784439f0321b6b0
PDF Text
Text
DRAFT/SSH/TMWS/12/30/77
MEMORANDUM
TO:
El.tiott Cutller
Leo Krulitz
A. Stephen Clay
White House Task Force on
Indian Claims in Maine
FROM:
Passamaquoddy/Penobscot Negotiation Committee
SUBJECT:
Settlement Package
DATE:
January 2, 1978
This memorandum will set forth those items on which we
have agreed as of our meeting last Thursday and our proposals
for resolution of those items, which remain unresolved.
For
convenience, we will use the outline adopted in our November 11,
1977, memorandum.
Numbers 1 and 2.
With regard to the land and cash
elements of the settlement, it appears that we mutually agreed
upon the following:
a.
That the federal government will seek an
overall settlement for our entire . claims, not merely those
against private defendants, as initially contemplated.
b.
That the Nations will agree in advance to
accept one of four possible settlement alternatives:
�~~
rt
i ~ ~ ,~
·-~
-2(1)
Settlement of claims against small
landowners, litigation for possession and trespass damages
against all others;
(2)
Settlement of claims against all
private landowners, litigation against the State of Maine;
(3)
Settlement of claims against small
landowners and the State of Maine, litigation against large
landowners;
(4)
(c)
Settlement of all claims.
That the State of Maine and the large landowners
will be required to enter into any settlement which involves
the relinguishment of claims to their lands, and as in the
event an adequate contribution cannot be obtained from either
the state or the large landowners, that the Tribes will accept
a settlement alternative which does not require contribution
from those that refuse to contribute. 1/
(d}
That the agreement by the Nations to accept the
alternative settlements will expire 90 days after the terms of
1/
Agreement on this item is conditioned on the Tribe
having input into determining whether an adequate effort has
been made to obtain a contribution from the state or from large
landowners.
�-3such alternative settlements are agreed upon by the Nations and
the White House Task Force.
(e)
That the terms of the alternative settlements
will constitute minimums, and that in no event will the Nations
be ~sked to accept less than the amount specified.
(f)
That all the lands acquired in settlement shall
be held in trust for the benefit of the Nations by the federal
government.
(g)
That when the Nations and the White House Task
Force refer to lands to be acquired for settlement, they are
referring to high quality woodlands of the sort which presently
has a market value of $150.00 per acre.
(h)
That all funds acquired in settlement shall be
held in trust by the Nations on terms agreeable to them and the
federal government and that no part of the principal shall be
distributed on a per capita basis.
With this agreement, Items 1 and 2 appear to involve
only the amounts in question.
As we indicated in our meeting,
it is our feeling that your proposal falls far short of Judge
Gunter's recommendation.
That recommendation called for us to
�. 'f
·. ;\ :;/:'
-4receive $25,000,000.00, 100,000 acres of land, and "normal"
services from the Bureau of Indian Affairs."
At the same time,
however, the Judge recommended that the Department of the
Interior use its best efforts to acquire long-term options for
us on an additional 400,000 acres of land.
It would have had
the State of Maine continue forever to appropriate annual
benefits for us at a rate equal to the average of the state's
current and last four year's Indian expenditures.
These last
two items were simultaneously added by Judge Gunter shortly
before he presented his report to the President.
While it is
true that the provision calling for continued state benefits was
in a form of a - suggestion rather than a demand, and that the
option for it to be exercised with "tribal funds", the clear
intent was the continued state benefits would yield the tribal
funds that would be used for this purpose: either directly
through payment in a form of an annuity or indirectly by freeing
up funds from the Tribe's federal services budget.
In any
event, Judge Gunter saw us eventually receiving 500,000 acres,
whereas your proposal offers less than half that amount.
In addition to the foregoing, in considering our
proposal we would also ask you to remember that in our previous
submission you were only asked to set forth terms for settlement
of our claims against private defendants, whereas we are now
asked to specify an overall settlement.
Keeping these facts in
�-5mind, we propose the following:
(a chart - to be left blank now)
Numbers 3 and 4.
We are agreed that the final settle-
ment will not specify a specific dollar amount for services, but
will carry a pledge that the Nations will be considered fully
federally recognized Tribes, will receive federal services on a
level comparable to other federally recognized Tribes, and that
the eligibility of the Nations for such services shall not be
terminated.
We are also in agreement that we will hold further
talks concerning inclusion in the FY 79 Budget (or an earlier
supplemental appropriation) of a special line item for capital
improvements acquired by the Nations as a results of 145 years
of federal neglect.
Number 5.
We are in agreement that the lands acquired
pursuant to Sections 1-2 shall be treated for governmental
purposes as lands of other federally recognized Tribes are
treated, and that we shall hold further talks to determine the
appropriate means of accomplishing the Nations' desire (as
specified in our memorandum of November 11, 1977) to have the
State of Maine exercise civil and criminal jurisdiction during
an initial study period.
�-6Number 6.
We are agreed that the federal government
shall acquire easements for non-commercial hunting, fishing,
and trapping for the large private defendants, that such
easements shall run with the land, but may include
such
easements may include an exception prohibiting the right to
exercise such rights within a fixed distance of any existing
or future dwelling.
We have not discussed, and we are in
apparent disagreement, over on how much of the lands of these
defendants these easements shall apply to.
We are in agreement,
however, that the settlements shall preserve the full rights of
the Nations to hunt, trap, and fish on the lands obtained in
the settlement and lands they presently possess, but that their
members will be subject to regulation by the State of Maine
off-reservation
when they hunt, trap, or fish on/lands of the State of Maine.
Number 7.
We are in agreement that the federal
government will acquire a needed right to obtain brown and yellow
ask from the land of large private defendants in our claim.
Number 8.
We are in agreement that we will discuss
the problem of flooding by Bangor Heights Electric Company
further.
Number 9.
We are agreed that in the event an overall
settlement is not obtained as specified in Sections 1-2, that
the federal government will proceed on behalf of the Nations as
�..
I
'";r
-7specified in that section, and that in the event we are unable
to agree on proposed terms for settlement, that the federal
government will proceed to litigate our claims as specified in
the Report of the Justice Department to Judge Gunter.
nterior has agreed
The Depart:nent of the
that even if we are unable to agree on settlement terms
at this juncture, that the Department will oppose any legislation
which seeks to extinguish our claim without our consent.
[We are
agreed that even if we are unable to reach a settlement at this
juncture, that the Department of the Interior will oppose any
legislation which seeks to extinguish our claims without our
consent].
We understand, however, that the President will not
unconditionally promise to veto such legislation if we are unable
to agree on settlement terms.
We have not discussed, but would
want a pledge from the President, both .in writing and in person,
that if we do reach an agreement on settlement terms but
the
government is unable to secure sufficient contributions from
either the large landowners or the State of Maine and is thereby
obliged to proceed with litigation, that the President would
vigorously oppose and veto any congressional effort to extinguish
such remaining claims without our consent.
Number 10.
We are agreed that it would be advantageous
if the private non-Indian landowners within Indian Township could
be convinced to voluntarily sell their claims to land within that
Township, and that we will make a good faith effort to obtain
�,·
'
-8such consent.
Number 11.
We are still awaining information from
the Department of the Interior concerning the Marine Mammal
Protection Act.
Number 12.
We have not reached agreement on the legal
forum which an ultimate settlement would take.
�
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National Congress of American Indians Records
Description
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Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
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NMAI013
Title
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Memo from Passamaquoddy and Penobscot Negotiation Committee to the White House Task Force on Indian Claims in Maine (Draft), regarding the settlement package that is being negotiated (01/02/1978)
Date
A point or period of time associated with an event in the lifecycle of the resource
1/2/1978
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 531, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indians - Land Claims - General, I] [1 of 3]”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
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English
Description
An account of the resource
Memo from Passamaquoddy/Penobscot Negotiation Committee "sett[ing] forth those items on which we have agreed . . . and our proposals for resolution of those items, which remain unresolved." Of particular interest is the mention of engaging in "further talks to determine the appropriate means of accomplishing the Nations' desire . . . to have the State of Maine exercise civil and criminal jurisdiction during an initial study period."
Type
The nature or genre of the resource
Text
Documents
Format
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PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
A. Stephens Clay
Eliot Cutler
Extinguishment of Claims
Hunting and Fishing
Jurisdiction
Leo Krulitz
Passamaquoddy and Penobscot Negotiation Committee
White House Task Force
White House Work Group
-
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360482de21016a16d48c4a072198d2cc
PDF Text
Text
Governor
Harold Lewey
Indian 'Cownsbip·· t:ribal 00"tl'nment Council Members
Albert~na
Anna Harnois
Phyllis Sabat~us
Allen Sockabasin
George Stevens
Dennis Tomah
Passama·quoddJ Tribe
Motahkmikuk
L~. Governor
Carl Nicholas
Tel (207) 796~~01
Mailing Address: Bn 301 Princeton, Maine 04668
Hon. Richard Cohen
Attorney General
State of Maine ·
State House ·
Augusta, Maine
September 7, 1979
Dear Mr. Cohen,
After discussing your· rec·ent me·e ·ting with. ·our a tto·rney
and the attorney for the· large 1andhoTdeis ,- we· ·have ·deci_ded
that we would be· ·willing, in the· ·interes·t of· res·olving the
land claims,- to the" "
follow·i ng ter·ms ·of settlement for our
existi~g res·ervations and lands ·to be· ·acquire·d in a settlement:
1. ·All State : of Maine civil and criminal laws ·o f general
application. would be adopted by our tribes· and. wo·uld:: .. a.pply
on our lands .·in the· ·m anner that such ·1aws· apply to Maine ·
municipalities·, so· long as the·s·e· ·1aws· do not discriminate,
either as written or as applied, against membe·rs of our tribes,
or vest in the State or the state · ·c ourts the· ·pow·e ·r· to alienate
our lands.:
.
2. Our tribes will comtrol hunting, fishing, and trapping
on our lands. In so doing w~ will ag~e~ ·to im~ose adequate ·
conservation safeguards ·so· that our· practice~· do not substantially
diminish "fish ·or· game stodks on adjacen·t lands or_ waters. Sµch
an agree·mefrt wo."u ld require -a satisfactory provision for transportation of" fish and game.
3. Our lands will be ·treated as federal Indian reservations
for purpose·s· of taxation.
.
4. Federal criminal statutes·, such as the Maj or Crimes
Act and th~ General Crimes Act,· will apply on our lands,.and.
our tribes.will have the ·right, · if th~y so ch6ose,· to establish
courts in accordance with ·the ·rec·e:n.'t decision by the· Maine
Supreme Judicial Court in ·sta·te· v .· ·na·na·. to he·a:r minor Indian
vs. Indian offenses, and Imd1an civil matters arising on our
lands, including those whicn fall under the· Indian Child Welfare
Act.
.
This proposal, which accords· with our understanding of the
Hathaway Proposal, meets the concerns which we have heard voiced,
�Hon. Richard Cohen, p. 2.
and represents our best faith effort to meet you half way.
But beyond this we cannot go. We must have your response
by September 14, 1979.
�
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Title
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National Congress of American Indians Records
Description
An account of the resource
Documents from the National Congress of American Indians Records have been provided by t by the National Museum of the American Indian Archive Center. Additional information about the collection can be accessed on their <a href="http://www.nmai.si.edu/explore/collections/archive/" target="_blank">web page</a>.
Text
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Identifier
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NMAI010
Title
A name given to the resource
Letter to Maine Attorney General Richard Cohen from Tribal Negotiation Committee Regarding Settlement Terms (09/07/1979)
Date
A point or period of time associated with an event in the lifecycle of the resource
9/7/1979
Source
A related resource from which the described resource is derived
National Congress of American Indians Records
National Congress of American Indians records, Box 530, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “Maine”; National Museum of the American Indian Archive Center, Smithsonian Institution
Language
A language of the resource
English
Description
An account of the resource
Letter describes settlement terms that the Tribes are willing to agree to after recent meetings between the State and the attorneys for the Tribes and the large landholders. Signed by Gov. Harold Lewey, Gov. M. P. (?), Timothy Love, Lt. Gov. Carl Nichols, James Sappier, Reuben ("Butch") Phillips, Andrew Akins, Robert Newell, and one other (signature illegible).
Type
The nature or genre of the resource
Text
Documents
Format
The file format, physical medium, or dimensions of the resource
PDF
Subject
The topic of the resource
Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Copyright is retained by the creators of items in this collection, or their descendants, as stipulated by United States copyright law. This item is made available for research and educational purposes by the National Museum of the American Indian Archive Center. Prior permission is required for any commercial use.
Attorney General Richard Cohen
Hunting and Fishing
Jurisdiction
Municipality
Passamaquoddy and Penobscot Negotiation Committee
-
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39bdc134ff9256f35618c9543b3727e3
PDF Text
Text
•
p
IJ
STATE OF MAINE
MAINE LEGISLATURE
Joint Select Committee
on the
INDIAN LAi'ID CLAIMS
REPORT~OF THE JOINT
SELECT COMMITTEE ON
INDIAN LAND CLAIMS
RELATING TO
LD 2037 "AN ACT to Provide for Implementation
of the Settlement of Claims by Indians . in the
State of Maine and to Create the Passamaquoddy
Indian Territory and Penobscot Indian Territory."
COMMITTEE
Sen. Samuel W. Collins, Jr.
Senat·e Chairman
Rep. Bonnie Post
House Chairman
Rep.
Rep.
Rep.
Rep.
Rep.
Sen.
Paul E. Violette
Michael D. Pearson
Elizabeth E. Mitchell
Barry J. Hobbins
Charles G. Dow
Gerard P. Conley
Sen.
Rep.
Rep.
Rep.
Rep.
Andrew J. Redmond
Donald Strout
Darryl N. Brown
Robert J. Gillis, Jr.
Charlotte Zahn Sewall
�REPORT
of
JOINT SELECT COMMITTEE
on
INDIAN LA!~D CLAIMS
The Joint Select Committee on Indian Land Claims would like
to present for the record its findings and intentions in voting
on L.D. 2037, "AN ACT to Provide For Implementation of the Settlement of Claims by Indians in the State of Maine and to Create
the Passamaquoddy Indian Territory. and Penobscot Indian Territory." During the course of its deliberation on this bill, the
Committee received a great deal of information from the office
of the Attorney General and representatives of the Passamaquoddy
Tribe and Penobscot Nation, including their counsel. The information and interpretation developed during the committee deliberations are an integral part of the committee's understanding of the bill and were included in the committee's discussion
and decision.
It is the tinderstanding of the Committee that L.D. 2037 is
a basic document establishing the principles of the relationship
between the State and Indians residing in the State.
It is more
of an organic document than a specific bill, and thus it seeks
to establish the broad and basic provisions of this relationship,
rather than the intricate details. Because of this nature of
the bill, it was not drafted to refer to specific provisions of
state law, but to refer to the basic principles of state law
that have remained constant. Thus, it is important that the
Committee state that it was considering this bill in the context of present state law, and in some instances, understood
that certain specific statutory determinations found elsewhere
in State law applied to its intent in the bill. The Committee
did not amend the bill to reflect the specific statutory understanding because that would interfere with the bill's purpose
of establishing basic principles.
It is the understanding and intent of the Committee that
this bill establishes the basic principle of full state jurisdiction over Indian lands within the State, including Indian
Territory or Reservations. The bill provides specific exceptions to this principle in recognition of traditional Indian
practices and the federal relationship to Indians. The Committee understands that these exceptions are being granted to
resolve the long-standing disputes between the State and Indians,
and intends that this resolution will provide the basis for harmoniously developing the relationships between Maine's residents.
Except for the specific provisions of this bill, Maine's Indians
are to be full citizens of the State with all the rights and
duties incumbent on that relationship.
It is the understanding and intent of the Committee that
the answers to specific questions posed by legislators contained
in the memorandum to the Committee from Attorney General Richard
S. Cohen, dated April 2, 1980 applies to this bill and accurately
interprets its provisions.
�It is further the understanding and intent of the Committee that the following specific interpretations apply to
the bill:
1. The definitions currently used in Title 12, section
7001 relating to inland fisheries and wildlife apply to the
use of those terms in this bill, unless the context clearly
indicates otherwise.
2. The authority of the Passamaquoddy Tribe, Penobscot
Nation and Tribal-State Commission under this bill are limited
to regulating the taking aD4 possession of fish and wildlife.
That authority does not indlude any authority over stocking,
propagation and selling or dispositipn, which remain subject
to general state law.
3. The provision on transportation of fish and wildlife
permits transportation within the State but outside of Indian
Territory if the fish or wildlife was legally taken in Indian
Territory. This provision does not exempt that transportation from other·legitimate state police power regulation, including requirements relating to public health, sanitation,
registration, sale or disposition.
4. The provisions relating to Indian sustenance hunting
and fishing apply only to hunting or fishing for personal or
family consumption. They do not apply to hunting or fishing
to-maintain a livelihood or other commercial purpose. ,
5. The jurisdictional provisions relating to fish and
wildlife use the term "sides of a river or stream" whic~ means
the mainland shore and not the shoreline of an island.
6. This bill continues without restriction the power
of the State to determine the assistance it will offer for roads
or highways.
7. The exemption from State taxation for the income from
the settlement fund is an exemption from state income taxes.
8. The provision for payment by the Tribe or Nation of· a
fee in li~u of taxes on real property will apply only to the
re~l property in the Territory that is actually located within
the jurisdiction of the taxing authority. Thus, payments to a
county in lieu of county taxes would be based on the valuation
of the portion of Indian Territory that is within that county's
boundaries.
9.
The tax exemption granted by this bill to Indian property
is not a new exemption under the Maine Constitution, Art. IV, Pt.
3, §23. Because of the "municipal status" granted to Indian
Territory by this bill, the existing exempt status of "government
purpose" municipal property applies.
10.
The scope of the tax exemption for "governmental pur-
-2-
�poses~ granted to the Indians under this bill is to be governed
by the limitations established by the general statutes, rules
and case law governing those exemptions in all other municipalities in the State.
11. The definition of "business capacity .. under the taxation provision of this bill means that capacity and resulting
acts which any resident of this state could take in a private
or corporate form without being a governmental agent or agency.
12. The requirement for municipal approval under section
6205, sub-§5, before property within the. municipality may be added
to Indian Territory or Reservation applies to property acquired
in any manner, including property received in return for property
taken by eminent domain or property purchased with the proceeds
of a taking under eminent domain.
13. The selection process and requirements for selecting
a tribal school committee are internal tribal matters governed
solely by triba~ law. The standards for operating the school
and school committee, including teacher certification, curriculum, hours, records and other operational requirements are
governed by State law.
14. The boundaries of the Reservations are limited to
those areas described in the bill; but include any riparian
or littoral rights expressly reserved by the original treaties
with Massachusetts or by operation of State law. Any lands
acquired by purchase or trade may ·include riparian or littoral
rights to the extent they are conveyed by the selling party or
included by general principles of law. However, the Common
Law of the State, including the Colonial Ordinances, shall
apply to this ownership. The jurisdictional rights granted by
this bill are coextensive and cotermin~s with land ownership.
Finally, it is the understanding of the Committee that
Congress may provide that certain provisions of this bill may
not be amended without the consent of the Indian Tribe, Nation
or Band that will be affected by the amendment. However, it is
also the understanding and intent of the Committee that the state
retains exclusive and unlimited discretion and authority to amend
or repeal any statute relating to Indians that is not contained
in this bill and to enact, amend or repeal general law even
though it may have an effect on the powers or duties of the Tribe,
Nation or Band as provided by this bill.
This Committee believes that stiliject to this interpretation,
this bill will provide a firm basis for a strong and sound relationship between Maine's Indians and other citizens. It is a
major accomplishment of all parties that this difficult, complex
and possible devisive controversy can be resolved in such a reasonable and satisfactory manner.
Signed.
House:~\)~
Representative Bonnie Post
Chairman
·-3-
�~
RicHARD
tiii
S. CoHE:N
STEPHE:N
~
ATTORNEY GENERAL
L. Dta.."!O'SD
JoHx S. GLEAsoN
JoaN )1. R. PATERSON
RoBERTJ. SToLT
DEPUTY ATTORNEYS GENERAL
STATE OF ~L-\.INE
DEP.ART)!E:NT OF "THE ....-\.:rTOR.."'ffiY GE~RA.L
. c\.UGUST..-\., ~:LuNE 04333
· .'
Aprit 2, 1980
To:
Joint Select Committee on Indian Land Claims
From:
Richard
Re:
Proposed Indian Land Claims Settlement
s.
Cohen, Attorney General
In response to questions pased to me by Senator Collins
and Representative Post by their letter of March 26, I am
pleased to provide the ~allowing responses. This memorandum
supercedes my memorandum of ~arch 28, 1980 and provides a more
detaileq response to several of th~ questions.
l.
What are the major consequences of failing to enact this bill?
As I have said in my earlier statements, failure to anact
the Maine Inplementing Act could have serious consequances for
the State and · its citiz2ns. In my opinion, if the fuatter is not
s~~~l2d, the c~airn will go to trial.
The cost of a trial to
~~~ State aio~2, nc~ inc~~ding ?riva=e d~fe~dants, would probably
exceed $1 million.
It would taka roughly 5 ~o 6 years to get
~ tinal decision frcrn the Gnited S~~t2s Supreme Court~
During
that time titles and ~ortgages in the cl~im area would be in
turmoil, and municipal bonds would not be marketable.
If it
gees to trial there is a serious risk of the Stata and private
landowners losing a substantial tract o~ land and being ordered
to pay money damages.
In addition, if the matter goes to trial and if land is
awarded to either Indian Tribe, the State will in all probability
be unable to enforce any of its laws on those lands.
2.
Wha~
S?~cial provisio~s exist ~or India~s attendinq the
Cni. oo;_:-er::; it~· of ~·1ai:12, sue:: ~~s -::u.i. i:. :.c:-:. a!:"ra.::"lcre~-=!""'-~s, anc!.
~ill chev ccn~inue a~t9r set~lement o~ the clai~?
~3 we und2rsta~d i~, under ~~2
G~~versity o~ Maine, I~dians 9ay ~o
~ur~ent
poli~y
c~
tuici.on or fees.
the
This
�Page 2
exemption is not required by law, however, and can be continued
or terminated at the option of the trustees.
3.
What is the status of Indian Territory after settlement,
either organized or unorganized, and what are the tax
consequences? Will it result in anv tax exemptions?
What will be the effect on the Forest District, the
Spruce Budworm District, and the Tree Growth Tax Law?
The Indian Territories will b~ unique legal entities.
Although they will not be aalled municipalities they will, with
a few exceptions, be the functional equivalents of municipalities.
In effect the Territories will be organized areas of the State
and will no longer be considered unorganized territory of the
State.
The Unorganized Territory Educational and Service Tax, Title
36 M.R.S.A., Sections 1601-1605, will not apply to the Indian
· Territory~
Since the Indian Territories will be functional
equivalent of organized areas, these taxes will not apply to
the Territory. The purpose of the referenced tax is to provide
sufficient monies to the Unorganized Territory Educational and
Service Fund.
The Fund is annually established by . the Legislature at an amount sufficient to pay for the various municipal
services provided to the unorganized territory by . State agencies
or counties.
After the Fund level is established the ,tax is
levied on the unorganized territory at a rate sufficient to
generate revenues equal to the legislatively established level.
Thus the rate of the tax and tax revenues are directly related
to services rendered by the State. Since the effect of L.D.
2037 will be to remove certain areas of the Sta~e from the
unorganized territory it will automatically reduce State . costs
to the territory.
Thus, removal of the Indian Territory from
u~organized territory w~ll result in no loss of revenue to the
Scat2.
With res~ect to other taxes, the Tribes will 9ay all State,
county and· district taxes of any kind applicable to any
municipality.
These taxes will be called a fee but paid in
the same amount as the usual tax.
Income to the Tribes from the
Federal Tribal Trust Fund will be exem9t from State income taxes.
Any land owned by a tribe in a town can be taxed by the town
and taken for non-payment of taxes.
Any land acquired by the Tribes in an area currently designated as within the Spruce Budworm District will remain within
that District and will pay a fee equal to the tax. With respect
~o the Maine Forestry District, the Indian Territory will remain
within the District.
Tta defini~ion o~ tte Distric~ is a
gacgraphical description encan;assing organized apd unorganized
areas.
In my judgment ~~e incorpora~ion cr cr2~tion of Indian
T2rritory in an area currently designa~ed as witiin the Maine
For~stry Distric~ does no~ ch~nge t~~ 8oundari2s a: ~~e District.
�~.
;
Page 3
Finally, the Tree Growth Tax Law will apply to the Indian
Territory. We anticipate that the practical impact of the
application of this law to the Indian Territory will be
negligible. Current law requires that all forest parcels
over 500 acres in size be taxed under Tree Growth rates.
Since we anticipate that the lands to be acquired by the
Tribes in the Indian Territory are already classified
as Tree Growth lands, the tax status of such parcels will
not be altered.
Thus, the Tribal ·payments in lieu of taxes
will, as a practical matte~, be unchanged from the taxes
previously levied on these lands. Similarly state funds
to be provided to the Tribes ~vill be computed in the same
manner as it would to any other municipality in which
the bulk of the lands were designated as Tree Growth Tax
Lands.
4.
How was the price of land to be purchased under the
the settlement negotiated, and who was involved?
Negotiations were conducted directly between landowners
and the Tribes. Since all parties agreed that any purchase
of land would be funded by Congress, we did not believe it
appropriate to participate in those negotiation?.
In .
addition, I believe that former Governor Longley was of
the view that the State should not participate in land.
acquisition negotiations.
I agreed with Governor Longley's
pos~tion and have acted consistent with it.
Only Congress
has authority to decide how much money should be appropriated
for this purpose.
I am confident that Congress will carefully
scrutinize the requested appropriation.
5.
What will the State's obligation for welfare, education,
and 0ther services be after the settlement? Will the
Federal Go·;ernme-nt assume any of these obligations?
The Department of Human Services is required· to reimburse
any ~unicipality 90% of the general assistance costs that
exceed .0003 of that municipality's state valuation.
This
same system will apply to t~e T~ibes in their respective
Territories. We believe the current general welfare statutes
provide sufficient safeguards to prevent the tribes from
abusing that system.
If, however, abuses do occur, the
Legislature is free to amend the general welfare laws to
correct them.
In this regard, however, it should be noted
that of the budget of tha Maine Department of Indian Affairs
=or F.Y. 1979-80, an estimated $450,000 can be classed as
ge~eral welfare assistance.
It is apparent there~ore that
the State has traditionally spent substantial sumsfor these
progra~s on the reservations.
~nder the Implementing Act
these direct appropriations will cease and the Tribes will
work within the present system as any other ~unicipality
- dces.
�Page 4
For purposes of determining eligibility for State financial
assistance, including for example ?EDC, any Trust Fund income
distributed to individual members of the Tribes will be
treated as ordinary income and computed in determining such
eligibility.
The State of Maine currently funds nearly the entire cost
of education on the existing Reservations. This cost for
fiscal year 79-80 was approximately $770,000. After the
settlement, the Federal go~er~~ent will contribute heavily
to the cost of education on Penobscot Territory and Passamaquoddy Territory. For fiscal year 80-81 the Federal government
is expected to contribute _
approximately $1,126,000 to the
cost of education on the two territories. We anticipate
therefore that the State will have little if any financial
obligation for education.
Another State expense for municipalities is in the area
of road maintenance. Again, however, we expect that under
the proposed Implementing Act, the State will realize a net
savings. Under present la1;.v all roads on the Passamaquoddy and
Penobscot Reservations are designated as state highways,
no matter how small, and- as a result the State pays all costs
of maintenance.
Under the Implementing Act, this provision
will be repealed and the State will have the option of
designated state highways and state-aid roads within rndian
Terri tory as it does in any other municipali-ty. While we
do · not have cost estimates, it seems reasonable to assume
that such a scheme will result in a cost savings · to the
State.
6.
jurisdiction and ownersl:ip o£ any "Great Ponds" be
affected by the settlement?
~vill
Ownership of and access to Great Ponds will be completely
una=fected. The ~vaters and subs~r:~ce lands will remain under
State ownership. The general com.rncn lar.v right of access' to
Great Ponds will apply to any of these ponds.
�Page 5
Fishing jurisdiction on Great Ponds, 50% or more which
shoreline is within Indian Territory, will be vested in the
Tribal-State Commission with authority in the Commission to
adopt regulations on season, bag limits, size limits and
methods. This regulatory authority is subject to the residual
power of the Commissioner 6f Inland Fisheries and Wildlife to
supercede Tribal-State Commission regulations if he determines
that the regulations are harming or there is a reasonable
likelihood that they will ~arm fishing stocks in other water.
7.
May Congress alter the amount of money in the settlement,
and what is the consecuence if it is·altered? What is the
consequences if Congress appropriates no money after the
Legislature has enacted the claims bill?
Congress' power in Indian law is absolute and as a matter
of constitutional power Congress can extinguish the claim on any
terms that it wishes. Whether an alteration would affect the
chances of enactment of the bill is a matter of political judgment and would depend upon the magnitude of the reduction. I
would, however, expect that the Tribes would oppose any bill
that appropriates less than that to which they agree. Congress
could nevertheless provide less money ~~ it wished to do so,
though I would not expect Congress to go so far as to extinguish
the claim without any compensation.
·
~'lith respect to the State bill, although it comternplates
an appropriation by Congress as a precondition to its taking
effect, since Congress' power is absolute, Congress could ratify
or otherwise implement the Maine Act without regard to that
limitation.
8.
will be the effect of the settlement on "camo lots"
leased on lands transferred to the Indians? What policies
on future leasi~g have been agreed to?
~vhat
We do not know the policy of all the landowners but we
understand ~hat some have agreed not to sell lands which are
leased for camp lots. We also understand that Dead River and
Great Northern will give camp owners the opportunity to purchase
their lots and thus except those properties from the Indian
Territories. To the extent such lands are sold, the
�Page 6
Tribal Negotiating Committee has represented to us the Tribes'
intention to continue the leasing policies previously employed
by the timber companies. This representation is not
binding, however, and the Tribes could refuse to renew leases
after the termination dates just as any other landowner can.
9.
What are the estimated expenses of the Tribal-State
Commission and who will pay them?
-~
i
The Governor has suggested that the Commission's initial
expenses not exceed $3,000.00 per year.
These costs are proposed
to be paid .out of the administrative account of the Department
of Inland Fisheries and Wildlife. The amount and source of monies
can be changed by the Legislature if circumstances require.
10.
(A) Will the fish and game provisions of the bill establish
two independent licensing authorities in the Territory and
Reservation areas?
Yes.
The Tribe will have authority to regulate hunting
and fishing in small ponds and may require - a license.
The
Tribal-State Commission will have authority in large ponds,
rivers and streams and may require a license.
(B)
Will Maine residents have to purchase two licenses?
The Tribe and Commission are authorized, but not required,
to require licenses on lands or waters under their jurisdiction.
These licenses would be separate and distinct from State.licenses.
However, State licenses are not required to hunt or fish in
Indian Territory or_waters under Tribal-State Co~~ission control.
(C)
Will non-Iqdians be
e~~irely
barred?
Nhether non-Indians are ~arred from the Territory-depends
on tri~al policy.
As landow~rirs thd Tribes will have the sarne
power to open and close their lands as paper companies do.
Since the Tribes may buy land anywhere in the State which
r,vill not be included in the Tribal T:=rritory, they ~tlill I .like
any other lando'l.vner, be able to use these lands in any legal
manner.
(D)
How will the licensing and regulatory authority of the
Commissioner of Inland Fisheries and Wildlife be affected?
As a general rule, state fish and game la~.;s regarding hunting
and fishing will not apply in Indian territory.
Taking of game
and fish is controlled in the ~~=st instance exclusively by the
Tribe or Tribal-State Co~~ission.
Ho~ever, the Co~issioner can
do surveys, can check game registra~ions and can take remedial
�Page 7
s~eps, including superceding those regulations, if he
finds Tribal or Tribal-State Cc~mission regulations to be
harming or that there is a reaso~able likelihood that they will
harm other fish or wildlife resources.
(E)
May the Indians close their lands to hunting and
fishing?
Yes.
(F)
How does this authority compare to that of private
landowners?
Like private landowners, the Tribes can close their lands.
Unlike private landowners they can adopt separate hunting and
fishing regul_ations as explained above.
(G) Who and how will Indian hunting and fishing regulations
be enforced?
Tribal law enforcement officers will be equivalent to
municipal police officers and within the Indian Territory the Tribal
police can enforce all laws including Tribal ordinances. on hunting
.and fishing and regulations of the Tribal-State Commission. All
other state l~v enforcement officers, including Fish and Game
Wardens, can also enforce Tribal-State Commission regulations
and other laws of the State.
Indian violators of Tribal fish and game ordinances will·
go to Tribal Court. Non-Indian violators will go to State Court.
All violators, Indian and non-Indian of Tribal-State Commission
regulations go to State Court.
Tribal law enforcement officers will also be sugject to
the mandatory training requirements applicable to other local
police officers.
I.
ll.
Ho~.v
r.vill the Tribal School Coffi.!"'tl.ittees be selected, what
specific powers will they have and who will pa~ education
expenses?
Tribal school committees are currently provided for by
special laws. Those laws will be repealed and the Tribes will
be authorized to create their own school co~mittees as any other
municipality does. They will be subject to general state education laws, but as a transitional measure, and until those new
committees are created, the current school ccmmittees will
continue in operation.
�Page 8
Educational costs will be a shared TribaL-State expense
using the same formulas and methods used in any other municipality.
Currently all Indian educational costs are borne by the State,
~ith the appropriation for the current fiscal year amounting
to $770,000. We have been informed that the U.S. Bureau of
Indian Affairs anticipates expending more than $1,100,000 per
year on Indian education beginning October 1, 1980. Upon
inquiries to the Maine Department of Educational and Cultural
Services, we have been advised that ~ this federal payment will
more than exceed the anticipqted state and local share of
education for comparable municipalities.
12.
If Indians purchase a business or building with state funds
or guarantees and it fails, may the state or other creditor
take 1t to meet the outstanding loans? May lands in the
Territories or Reservations be attached by creditors? If
not, what remedies are available to enforce payment of debts?
The answer to these questions are not found in the Maine
Implementing Act but are contained in the draft of the
Federal bill to be proposed to Congress. Lands of the
Tribes within the Indian Territories may not be taken or
attached to pay creditors, regardless of whether the creditor
is the State or other person. However, creditors are entitled
to be·paid out of Tribal Trust Fund income. Thus a creditor can
sue the Tribe for a debt.
If the Tribe fails to pay the· judgment,
the creditor can.request the Secretary of Interior to pay the
judgment out of the Trust Fund income.
If the Secretary refuses
to pay, the creditor can sue the Secretary. We would conservatively
estimate the annual Trust Fund income at $1,250,000 for each
Tribe which should be ample to pay most debts.
Lands owned by the Tribe outside their Territory are not
subject to the same protection and can be foreclosed against,
attached or taken for non-payment of taxes or debts.
Individual
members of the Tribes will not own Tribal land but will occupy
parcels assigned to them. Their status is in some respects
similar to a person who leases land. The land such
individuals occupy cannot be taken or attached by creditors.
13.
May Tribal authorities open and close roads through the
Territory or Reservation lands, and may they charge for
road use?
Private roads owned by the Tribe can be open or closed at
will. County or State roads cannot be closed and the Tribe
cannot charge fees. County or State roads, whether owned in fee
or held under an easement, will not be transferred to the Tribe
but will remain under control of the State or County.
�Page 9
14.
Are non-Indians residing on Territory or Reservation
lands liable for taxes imposed bv Tribal authorities?
Do they participate in selecting those Tribal
authorities or in determining the tax rates?
The real · and person property of non-Indians residing on
the Territories is subject ·to taxes imposed by the Tribal
Authorities within those territories. Non-Indians residing on
the Territories. do not have the right to vote in Tribal
elections but the Tribes could elect to extend that right to nonmembers. However, they are ~ntitled to receive any municipal
or governmental services provided by the Tribe or Nation or by
the State, with minor exceptions, and are entitled to vote in
National, State and County elections in the same manner as any
tribal member.
15.
What is the effect of the settlement on state and Federal
authority over coastal or marine waters?
The only coastal land that will be owned by either Tribe is
the current Pleasant Point Reservation of the Passamaquoddy Tribe.
By virtue of this ownership, the Passamaquoddy Tribe will have
authority to enact shellfish conservation ordinances just as other
municipalities do in the .coastal lands immediately adjacent to
Pleasant Point. As in the case of municipalities generally, the
enactment of such ordinances will be subject to approval. of the
Commissioner of Marine Resources. The Tribes will have no other
rights in coastal or marine resources other than any other person
or entity.
No other coastal lands will be included i~ the Indi~n Territory.
To the extent the Tribes might buy other coastal land, they have no
more rights in the coastal lands or marine resources than any
other person.
16.
What specific municipal powers and duties are given to the
Tribe and Nation under this bill?
The effect of the bill is to make the Indian Territories
the functional equivalent of a municipality. The bill confers
on the Tribes within their Territories those powers and duties
possessed by municipalities under "horne rule." Those powers
and duties include but are not limited to ordinance powers,
taxation powers, home rule powers, the power to sue and be
sued and the power to dispense and receive services.
17.
What specific "rights incident to ownership of land» in
Indian Territory will the Indians gain under this bill?
The quoted provision, which is found in the last sentence
of Section 6207{1), means that the Tribes have all the same rights
in their property as any other landowner, including the right
to prevent hunting, trespassing or snowmobiling, to lease the
land, sell stumpage off it, or develop it.
�_.
Page 10
18.
What provisions govern the grounds and procedures for
civil actions, or custody or domestic relations actions
that are within the jurisdiction of the Tribes?
The Tribes are free to establish their own procedures without State regulation but subject to the Federal Indian Civil
Rights Act. We assume the Tribes will adopt their own laws
regarding minor civil matters and domestic relations as do
other Tribes in the county. ·we understand that the Penobscot
Nation now has an operationa~ Tribal Court, employs a lawyer
as Tribal judge and that. the Court utilizes. the Maine Rules
of Civil Procedure.
19.
What will be the financial obligations of the state after
enactment but prior to the effective date of this Act?
Will there be an appropriation for transit~on during
FY 1981 or 1982?
The existing State appropriation for Indian programs ends
at the end of the current fiscal year. It is unclear whether
the State has a legal obligation to fund some or all of the
existing Indian programs, until such time as the settlement
is implemented and federal funds flow to the Tribes. However,
we understand that the Governor is preparing a transitional
appropriation for FY 1981 to continue Tribal assistance.
Federal · funding begins on October 1, 1980, the start of ~he
federal fiscal year.
I hope the answers provided her~ are helpf~t·
feel free to inquire further of thi"l vfice .,
I j.l
'\
, j I
"'=l·J · ~
,
'
I:
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·.Jt!AuL
RICHARD S. COHEN
Attorney General
RSC:mfe
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�
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Report of the Maine Legislature's Joint Select Committee on Indian Land Claims, Relating to LD 2037 (Maine Implementing Act (MIA)) (Undated)
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
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Hunting and Fishing
Joint Select Committee on Indian Land Claims
Jurisdiction
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UNITED STATES
DEPARTMENT OF THE INTERIOR
OFFICE OF THE SOLICITOR
WASHINGTON. D.C.
20240
JAN 1 2 1978
MaDRANIXJM
To:
Passamaquoddy and Penobscot Negotiation Connni ttee
Frbm:
Eliot Cutler, Leo Krulitz and Steven Clay
White House Work Group on Indian Claims in Maine
· Re:
Settlement Package--Response to January 3, 1978 Proposal
We offer the following changes to your proposal of January 3,
1978:
Items 1 and 2
(c)
We agree . with the concept that the State and the large
landowners (as a class) should contribute to the settlement
if they are to be released from liability. The ·white House
Work Group reserves the right to detennine the amount
of the contributions, subject to obtaining for the Tribes
the relevant total amount of money and land specified below.
Footnote 1 to (c) is not acceptable.
(d)
The Work Group will have 60 days after the tenns of the
alternative settlements are agreed to in which to reach
an agreement in principle with the respective parties.
(g)
We agree to try to obtain 300,000 acre? of land under
alternatives 2 and 4 upon the ·condition that the land be
average quality woodland which has a current market value
of approximately $112.50 per acre as indicated in Note 2
(page 4 of your proposal) rather than $150 per acre.
(h)
Without accepting or rejecting your analysis, we would
agree to the following land and ooney:
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...
- · ·- -
.~
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Land
M>ney
1
-0-
$25,000,000
2
300,000 acres plus best
efforts to acquire options
to purChase 200,000 acres
$25,000,000
3
-0-
$40;000,000
4
300,000 acres plus best
efforts to acquire options
to purChase 200, 000 acres
$40' 000' 000
Alternatives
'2-Y-S
~ 3 . .s--
We agre~, also, that to facilitate acquisitions of the land the
Federal Government will offer to purchase ~art or all of the 300,000
acres at book value up to a total cost of $5,000,000. This cost is
not reflected in the dollar numbers above.
~We will use our best efforts to acquire _he options indicated
t
above. The options would be exercisable by the Tribes at market
value at the time exercised. Tribal ftmds would be used to exercise
the options.
As previously indicated the amotmt of land and money to be
obtained from the various parties would be detennined by us • · We
have concluded that it ' is unrealistic to try to. obtain as much as .
$22,500,000 from the State of Maine given their limited exposure in
obligation on the part of the State to continue to provide services
to the Tribes.
·
We do not believe the comments on page 5 require a response.
Items 3 and 4
We are agreed that the final settlement will not specify a
specific ·dollar amount for services, but will carry a pledge that
the Nations will be considered fully federally recognized tribes,
will receive all federal services, benefits and entitlements on the
same basis as other federally recognized tribes. We will respond to
the capital improvement budget item after we have received your list
of proposed projects. If option 3 or 4 is implemented, Federal services
will be exclusive·.
'
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-3-
Item 6
Our position on this item remains as setforth in our last proposal
to you. We understand that the Irembers of the Nations will be subject
to State regulations when hunting, fishing, fowling, trapping and
gathering off reservation lands.
Item 7
We will use our ·best efforts to acquire a deeded right to obtain
brown and yellow ash from the lands of the large private defendants.
Item 9
. Our position on Item 9 remains as originally setforth in our
previous memorandtnn to you. As we have previously indicated, no
assurances can be given with regard to a Presidential Veto. If you
approve the alternative terms of settlement as setforth herein, we
will vigorously pursue a final solution on those terms.
Other i terns in our December 16, 1977 Settlement Package MemQ
not specifically modified by this proposal continue to be requirements
of a settlement.
�
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National Congress of American Indians Records
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Memo from Eliot Cutler, Leo Krulitz and A. Stephens Clay to the Passamaquoddy and Penobscot Negotiation Committee, in response to the Negotiation Committee's proposal of 01/03/1978. (this document dated 01/12/1978)
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1/12/1978
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National Congress of American Indians Records
National Congress of American Indians records, Box 532, Misc. Rec. of S. Harjo, Eastern Land Claims, Folder Titled “[Maine Indian Claims—General, VI]”; National Museum of the American Indian Archive Center, Smithsonian Institution
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
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A. Stephens Clay
Application of State Law
Eliot Cutler
Hunting and Fishing
Jurisdiction
Leo Krulitz
Passamaquoddy and Penobscot Negotiation Committee
White House Task Force
White House Work Group
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358ca9e2baa1712f539bbece6c955e3c
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H.cpr·oduccd n ~ I he Nnlionnl Ar·chi \'cs
Statement of Wayne P. Libhart, Esquire, of Ellsworth, Maine and
James S. Erwin, Esquire, of York, Maine,
c'?
.,
on the subject of Chapter 732 of the Public
Laws of Maine entitled The Maine Indian Claims Settlement:
This statement assun1es that this Committee has as a part of its
pe~manent record and has read the followi~g:
(a) "Summary of Massachusetts/Penobscot Rela·tions-UPDATE,"
20, 1977 by the late Professor Roncild F. Banks of the
U ~ iversity of Maine at Orono, Maine.
Au~ust
(b)
"State Power and the Passamaquoddy Tribe: A Gross
J. O'Toule and Thomas N. Tureen,
Noveinber 1, 19 71.
:~rational Hypocrisy," Francis
~: · i. ne Law Review, Volume 2 3,
(c)
~o:u~e,
Symposium on Indian Land-Eastern Land Claims-The Entire
Volume 31, November 1, 1979.
~~e differing viewpoints of the issues here involved are thoroughly
d:.scus sed in those Hri tinr;s, and the a~Jl1l icable. history and docu:!"1.:...:-~ -::s are presented therein.
We will not attempt to summarize ·the
~~lient points in these writings excep~ to comment on what we perc...·.;;iv.z to be er'rors.
If any member of this Committee has a basic
f~~ilia~ity with the issues involved, it will be because he has
c.._r·efully read these above-listed wr'i·tings.
There are, of course,
r:.z....:.y others, but we feel that these stated above cover both sides
0f the issue quite well.
Our position on the passage of this Act
0..:- -~he Maine Legislature is basically outlined as follows:
(a)
The Congress of the United States has the power to
all Maine Indians to Maine lands.
(To
scholar contests this.)
8~ · ~inguish the claims of
c,~r knowledge no serious
(b)
Because the claims of Maine Indians now pending in the
~ :.:. · ced States District Court for Maine pose a serious threat to
~n~ocent Maine property owners, those claims should be extinguished
(~8e, for example, American Land Title Association Memorandum,
~:c.. :r·ch, 1978).
(c) If, in fact, Maine Indians have had lands they owned
(ownership in this context meaning, we believe, to be title as
opposed to possession or presence on the land) taken from them without adequate compensation, or if they have been cheated out of
·:;
�- 5·r_::·;l e Passamaqu.oddies were seafaring Indians arld never ven·tured far
from the sea.
They were also Micmacs and Malacites mostly, but
thGre wex'e many intermarriages with the Indians from Old Town.
Old Town, by the way, has been a n Indian village for some 5,000
Y· ars and was originally inhabited by Indians called "the Red
2
Po. int People."
It may be that the stipulation of tribal status in the Passamaq~oddy Trive v. Morton takes that issue away as well as the use
of a trust relationship, but the extent of the Passamaquoddy
claims remains open. We feel that the issues of tribes and of
damage are still open, however, because the Supreme Court may yet
rule onthese issues; the First Circuit Court of the United Sta·ces
l(;ft unanswered the ultimate questions upon which the pending
su.: ts will de p end if the cases reacl-1 tr·i.o.:.
'I :.e:re is an additional, ve.ry important qu ~ s·t:ion -co be a:i1Swercd
a satisfactory solution to this problem can be reached.
The present claims by the tr•ibes or bands of In c:L~. ans in Maine are
fo r· a large pPoportion of the land mas s of th0 S·tate.
Whether or
~afore
n ::Jt these Indians were ·tribes in the legal sense becomes important
i n aetermining whether or not they ever l1eld aboriginal possession
c£ s uch a large portion of Maine.
If the claims ever do come to
·:: ::' ial, such issues r'emain for the cour·t to decide and also as to
·tr ~e matter of damages.
'...· ~-.c
sunuuary of Professor Banks listed a·t ·t:he ope ni:r1g par•t of this
is dated in August of 1977, an d i t provides documented
that the Congress has on prior occasions acknowledged, at
l Gast by implication if not directly, that the Indian claims to
M
&ine lands have been extinguished.
Certainly, Massachusetts,
.j ~ ring the time that t .he Province of Maine was part of Massachusetts,
b2lieved that the claims had been extinguished and that the Indians
~ ~emselves had admitted that they had been conquered and their
claims to their lands had been extinguished. We said at the beginning of this statement that the issues involved should not be determi ned in haste because of the thought ·that two thirds of the land
i~ Maine may be taken away from its present white ownership and
r e turned to the Indians.
If the Indian claims h a ve any merit at
&11, and if the merit can be established in court, then the Indians
s~ould be compensated as Indians in the past have been with money
d~mages; but, as a prerequisite to that, it should be incumbent upon
t.t.L~m to prove the merit of their claims in ·the proper courts.
c ~ atement
p~oof
w~
would like to comment on one other aspect of this entire problem
·c:::lat it appears othe1..,s have not addressed and which we believe can
become a s~rious problem for Maine's sportsmen if the act becomes
l~ll.
Presently Maine sportsmen have access to the great ponds and
can hunt game and wildfowl on Maine wildlands by vir·tue of common
:~w rights derived from the Colonial Ordinances of 1641-47.
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�-6.h.l-though the proponents of the l-1aine Indian Claims Settlement Act
rr:ay state to the contrary, we believe ·the gran·ts of authori·ty to
Haine Indians under the Maine Indian Claims Se ·ttlement Act will
~ b rogate those Ordinances on the lands which the Indians intend
to acquire. We think that r e sult would be regretted by the people
o f Maine forever:
If Congress approves the Maine Implementation
Act as written, it will be almost impossible to alter the Act in
f~ ture years and Maine sportsmen will lose what we consider a very
v a. l uable right in 300,000 acres of Maine land.
F in~ l ly,
as to the law, we would like to call to the attention of
t :n e Committee again the important case decided by the Supreme Court
of the United States just recently: Wilson v. Omaha Indian Tribe,
U. S •
, 61 L . Ed . 2 d 1 5 3 . In t ha ·t case ·the Court s aid "but
l n t erms of the purpose of ·the prov.isions-- -tha·t of preventing and
p r oviding remedies against non-Indian squatters on Indian lands-i t is doubtful ·that Congress anticipu. ted such threa·ts from the
s~ates themselves or intended to handicap the states so as to offs~ ~ the likelihood of unfair advant& g e.'' Indeed, this 1834 Act,
w~ ~ch included Section 22, the provi s ion identical to the present
~E: ction 194 was "intended to apply to the whole Indian country as
o e fined in the first section." HR Rep. No. 1+7lJ., 23d Cong., 1st Sess,.
iO (1834).
Section 1 defined Indian country as being 11 all that
p~ ~ t of the United States west of the Mississippi and not within the
s ·:ates of Hissouri and Louisiana, or the Territory of Arkansas, and,
~lso, that part of the United States east of the Mississippi River,
a~d not with i n any state to which the Indian title has not been
e::.:tinguished. . . . " Al tho\].gh this defini -tion was discarded in the
R0 vised Statutes, see R.S. 5596, it is apparent that in adopting
S 2ction 22, Congress had in mind only disputes arising in Indian
c0~ntry, disputes that would not arise in or involve any of the states.
: 12 are most distressed that the Maine Implementation Act, although a
l ong time being negotiated, was rushed through the Maine Legislature
time for close examination of all aspects of the issues.
'i'h is Committee, therefore, we submit, should do the work which the
select committee of the Maine Legislature failed to do. We feel
vr2 r 'Y sure that if this Committee does investigate the historic and
:~ g al background of this matter, it will agree that, whatever the
solution may be to the Maine Indian lands problem, the present
? ~oposed solution is not, in fact, the right one.
~ithout
~2 dressing directly the act of the Maine State Legislature
11
~\~ aine Indian Claims Settlement Chapter 7 3 2 Public Laws of
entitled
the State
o f Maine 1980," we wish to make the following comment:
1.
Notwithstanding the fact that in tl1e Mashpee Indian case ln
Massachusetts above-cited, the case of the Indian claims was
lost because of the plaintiff's failure to prove its existence
as a tribe, the Maine Indian Claims Settlement Act, !.in i its
definitions and in a fashion of "bootstrapping·,"
··
�-7-
finds and declares that the claimants aPe, in fact, tribes· all
of them, the Malaci tes, Passamaquod(~ ies, and Penobscots ar~
declared to be tribes as they were constituted on March 4, 1789,
thus ignoring the express historical data compiled by the late
Professor Ronald Banks in -the update sununary quoted at the
beginning of· this statement. The submitted work of .P rofessor
Banks (who was cruelly murdered in New Orleans before he was
able to finish his research on this matter) is required reading
for any intelligent understanding of the chronological and
factual events which negate the claims presently before this
Committee.
The Legislature of the State of Maine has, as did
-the A-ttorney General's Office in the above-stated case of the
Passamaquoddy Tribe v. Morton stipulated an essential element
of the Indians' claim.
The stipulation is unfounded in history
and amounts to a logically inexplicable acceptance of a major
portion of a claim adverse to the State of Maine.
2.
"-'
In creating 300,000 acres of new "Indian te1,ritory," the
advocates of acceptance of the Maine Indian Claims Settlement
deny that there is any possibility of creating a sovereign within a sovereign.
This would only be true if, in fact, the lands
enumerated in the Settlement Act were made available to the
Indians for purchase in fee simple and were held by Indians
either as individuals or by the tribe as some form of legal entity
with exactly the same rights, privileges and obligations that
all other landowners in the unoccupi e d territory of Maine possess
and are subject to.
Instead, t hes e new Indian territories are
conceived of as "municipalities," bu-t they are, in fact, special
municipalities that do not exist in exactly the same form anywhere else in Maine.
A reading of the provisions concerning law
enforcement within these Indian territories shows how the persons
who drafted the Settlement Act labored to define and explain the
relationship between the Indian tribes and the State of Maine.
The result is a hybrid of law enforcement relationships which
cannot help for years to come to create severe problems as to
where and when state jurisdiction obtains and as to what may
happen as the expectations and understandings of whites and
Indians within the Indian territories come into conflict, as
inevi-tably they will.
The prospec ·ts for peaceful and orderly law
enforcement in the area of fish and game regulations alone are
dubious, to say the least. Any attempt, in later years, in the
face of depleted fish and game stocks by the Commissioner to
change fish and game laws as to bag limits or species which may
be taken can only be regarded by Indians as another instance of
-::he white man taking away from them something which they considered to be theirs of right.
We respectfully request this
Committee to make a careful analysis o.f the law enforcement
responsibilities and the possible problems which could arise
as the matter is covered in the Settleme n t Act.
Note pdrticularly that under Section 6206 of Section l General Powers, the
?assamaquoddy T1,ibe and the Penobscot Nation shall designate
such officers and officials as are necessary to implement and
�-8-
administer those laws of the Sta·te of I·1 aine that ax'e applicable
to the Indian territories. And note, also, under Section 6207
that ·.b y Subsection l(a) the Passamaquoddy Tribe and the Penobscot
Nation shall have exclusive authority within their respective
Indian territories to promulgate and enact ordinances regulating
hunting, trapping, and other taking of wild life. Yet, note by
Subsection 6 of the same section in th~ Act, the Commissioner's
powers of supervision may well be in conflict with the tribes'
choice of ordin .:~ nces for hunting, fishing and trapping. This
a rea alone could easily become a nightmare and lead to considerable administrative difficulty and, perhaps, dangerous problems
for law enforcement.
Tf'te undersigned feel that calling attention to a few points as above
w ~i l indicate to this Corunittee that there are some very serious
J! _;_ • blems with respect to tribal and s ·ta·te rela-tionships which have
..J
b ee n unrealistically and perhaps ineffectively dealt with by the
Settlement Act.
Law enforcement is not an exercise which occurs in
a vacuum.
It is often and perhaps almost always fraught with
2~ n otion and some danger for the law e nforcement officers themselves.
In Xaine, at least, the rights to hunt and fish and trap are widely
cc'l!sidered ·to be inalienable rights by a large proportion of Maine
ci~izens.
Clearly, if Maine's Indians are give n special, exclusive
r'i .:;hts to hunt without limi·ta·tion for sustenance purposes and non::-~ d ians may not have the same righ·ts, conflic t s will b e gin to crop
~p.
We respectfully request this Committee to make its own in-depth
ev~l~ation of the Settlement Act of the Maine Legislature.
We think
~~ raises more questions than it answers.
~ he
undersigned--both of whom are active practitioners of law in
standing, are avid hunters anc
fishermen and, for what it is worth, former members of the Maine
S~ate Legislature--believ e th~t even though the so-called settlement
~ ~s negotiated for many years, the Legislature was given little or
n o opportunity for in-depth study or review of the negotiations and
th ~ ir decisions and the reasons for them.
We believe that most of
the legislators voted on the basis of statements made to them as
to the chaotic problems that would arise with respect to land titles,
fu·ture mortgage commitments by banks., and ·the near impossibility of
s~lling future municipal bonds.
We believe that such tactics while
~~esented perhaps by spokesmen who believe they were implicit in
cGntinued negotiations or the advent of active lawsuit, the state~~~nts themselves foreclosed the individual legislators from asking
:o~ the necessary time to think about th e proposition and to review
i-c a:t leisure.
1::-1e State of Maine of many years'
Fin~lly,
we do not believe the scare stories because we believe as
that there are court procedures to prevent such untoward
£r8ezing of land titles. As we stated above, the simplest way in
w~ich the matter could be handled to the satisfaction of nearly
8veryone except those members of the tribes who literally believe
l a ~yers
�-9-
-c:hctt they may have returned to them one half of tl!e land in the
Sta te of Maine, is for Congress forthwith to extinguish all claims
·to land of all Indians in the State of Naine and to i.1. uthorize suits
to be brought in the United States courts of proper jurisdiction
fo.c the proof of and the a\vard of money damages, if any be deemed
a ~propriate by the courts, which said damages would be paid by the
U:r.. ited States of America.
W earnestly submit these thoughts to your consideration, and we
e
ar•e grateful for the opportunity to be heard. We most earnestly
r e quest that you will read the documents list e d above, and we
feel very sure that if you do, you will become convinced as we
are that history and the law will make it impossible for the
~aine Indians to sustain these claims in any courts of this land.
Respectfully submitted,
LJ
r,
k,
1-\e
P. Libhart,
Way~e
Ellsworth, Maine
X. ~
ames S. Erwin, Esqulre
York, Maine
�
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National Archives and Records Administration
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The following government documents have been provided by the National Archives, Washington, DC.
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NARA014
Title
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Statement of Attorneys Wayne Libhart and James Erwin of Maine, submitted to the House Committee on Interior and Insular Affairs and included as part of the hearing record for Bill H.R. 7919 (Maine Indian Claims Settlement Bill) (08/25/1980)
Date
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8/25/1980
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NARA
Committee on Interior & Insular Affairs, Legislative Files: House Bills, Box 139, Folder “Hearing on HR 7919 Full Committee”; 96th Congress; Records of the U.S. House of Representatives, RG 233; National Archives, Washington, DC.
Language
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English
Description
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Of particular interest, this statement discusses extinguishment, jurisdiction issues, and concerns about hunting and fishing rights.
Type
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Text
Documents
Format
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PDF
Subject
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Indians of North America--Maine--Land tenure
Indians of North America--Maine--Claims
Indians of North America--Legal Status, Laws, etc.
Indians of North America--Government Relations
Indians of North America--Politics and Government
Rights
Information about rights held in and over the resource
Public Domain
Extinguishment of Claims
Hunting and Fishing
James Erwin
Jurisdiction
Wayne Libhart